PTravel

Oy. In order to sue, whether in state or federal court, you must state a cause of action, in this case, violation of a law for which a private remedy is available (not all laws provide for private remedies). Complaints are rarely, if ever, simply dismissed by judges. A motion to dismiss (which is styled as a "demurrer" in some states' courts) argues that the facts, as stated in the complaint, fails to state a claim under law for which relief is available. The ADA has nothing to do with whether a private person can sue an airline, but constitutes federal preemption of any state law claim against the airline with respect to specific alleged violations.

PTravel

Judges don't dismiss lawsuits "upfront," and a motion to dismiss has absolutely nothing to do with the Constitution.

I'd strongly recommend that the non-lawyers participating in this thread avoid making statements about how law works as pretty much everything that has been said in this regard has been dead wrong.

sbrower

This applies to substantial portions of MANY discussions here. Fortunately, those of us who are lawyers (including PTravel) are frequently patient and willing to explain how the law works. What is really frustrating is when people who don't understand the concepts try to argue with the explanations based on their "idea" of how it should work, instead of being based on questions/explanations.

Regarding the position of the administration, you need to remember that the administration is the US government, and they ALL see themselves that way. I attended the US Supreme Court argument on Monday, and the US government was arguing in favor of the position taken by Argentina, trying to avoid liabiility for a $200 million arbitration award against Argentina. Why? Not because they actually think that Argentina was the "good guy" but because they want the right to argue against any treaty being interpreted in a manner which might later be interpreted against the US.

HongKonger

That is true for almost any business. This argument basically means states cannot regulate business. It's a shame IMO that the preemption doctrine has gone as far as it has. I hope the rabbi wins.

HongKonger

No but there are many legal reasons to dismiss lawsuits up front that are constitutional. Many lawsuits between private entities are dismissed in whole or in part prior to trial.

HongKonger

Depends on what you mean by "up front." In a prior life I granted 12(b)(6) motions several times a week.

PTravel

Not really. It is true of interstate common carriers.

No, it doesn't mean anything of the sort.

It's a shame that you're willing to come to this conclusion based on a completele lack of understanding of preemption doctrine.

So do I.

HongKonger

Thanks for being condescending. I was stating an opinion, not fact. I happen to be an attorney and I know plenty about it. Feel free to keep telling everyone how smart you are, it's a very endearing trait.

PTravel

It is not condescending to point out that you are wrong.

You're either an attorney not licensed in a US jurisdiction, or your legal education was incomplete or inadequate. No US attorney would give an "opinion" that preemption doctrine precludes state regulation of business. That "opinion" is wrong on so many levels that, if you are a US-licensed attorney, it is truly disturbing that you are licensed.

It's got nothing to do with how smart I am. This stuff is Conlaw 101 and any US-licensed attorney knows it.

Judges don't dismiss lawsuits "upfront." As I said (and as you apparently know), dismissals after a complaint has been filed filed are done only on motion AND only for cause, e.g. failure to state a claim. There are some federal courts that have screening magistrates who will bounce a complaint on jurisdictional grounds, for example improper removal (and then its a remand, not a dismissal), but no judge simply looks a complaint and decides to dismiss it. As for your granting 12(b)(6) motions, I don't, for a minute, believe you were ever a Title III judge for a couple of reasons: (1) As I said, federalism, preemption doctrine, the Interstate Commerce Clause and related issues and doctrines are the stuff of Conlaw 101; any federal judge would know these basic concepts forwards and backwards, (2) Title III judges don't have law and motion calendars "several times a week," and (3) I have, for the past 23 years, earned my living litigating, primarily in federal court, and have had the honor of appearing before many, many, many Title III judges and magistrate judges. Even when I disagree with their holdings, I am always impressed with the depth and scope of their legal knowledge and ability to express it accurately and cogently -- no federal judge would ever offer an "opinion" that preemption doctrine precludes state regulation of business.

This thread is of particular interest and importance to FT members and, unfortunately, there has been a lot of legal misinformation thrown around that precludes rational consideration of the issues. Nothing is gained by providing patently false "legal theories," which you and others have done. I'm sorry if you don't like the truth, but that is my "opinion."

pertristis

I feel as if I'm going to have to dig out my FedCourts and CivPro outlines for this thread, now.

DaDaDan

Preemption exists in this case because Congress passed the Airline Deregulation Act to do so, but it only applies to airlines not all businesses. It has the power to do so because of the Commerce Clause. It could in theory preempt state consumer protection laws more broadly for a wider range of businesses, but it has not done so.

PTravel

There will be a quiz on Friday. Next week: Erie Doctrine.

javabytes

I'm just going to dig out my popcorn instead.

djp98374

You are coming off a bit arrogant here.

Anyone here can read the legal doctrine and understand what it means and interpret it as they see fit.

Sure in a court, just like any other industry, there is an insider tricks, and policiy/procedures that outsiders may not know or be all that familiar with.

Unless you area lawyer who deals specifically with this particular subarea of the law you arent an expert either.

As for lawyers---its just like doctors---you dont go to a urologist if you need brain surgery (some women may disagree).

KevinDTW

Hold on -- for the benefit of the non-lawyers here, maybe we should start at the beginning. Now, in the Marbury case...